Sujit Kumar Jha @ Sujit Jha vs State of Bihar and Another

Rekha Kumari, J.—This is an application filed u/s 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 2.8.2002 passed by Sri M.A. Ansari, Additional Sessions Judge-cum-Fast Track Court No. I, Darbhanga in Sessions Trial No. 250 of 1997 whereby he has rejected the prayer of the petitioner to discharge him u/s 227 of the Code and has ordered to frame charge against him u/s 304 of the Indian Penal Code. Heard.

According to the F.I.R. the deceased was returning to his house through a narrow path way when the accused petitioner came with speed on his bicycle from the front side and pushed him causing injury in his testicles on account of which the deceased fell down and died after some time.

On the above allegation, a case u/s 304A of the Indian Penal Code was registered. The police after investigation, however, submitted that chargesheet u/s 304 I.P.C. and as such the case was ultimately committed to the Court of Session.

The petitioner filed a petition u/s 227 of the Code before the Sessions Court and his learned counsel submitted that no case u/s 304 I.P.C. is made out on the allegation and at best an offence u/s 304A I.P.C. is made out.

The learned Sessions Judge after hearing both sides and perusing the case diary found that the path way was very narrow and two persons cannot pass at a time through it. The petitioner had no justification to pass through path way on a cycle with speed. The deceased was an old and weak person. He further found that before the occurrence the petitioner had gone to the house of the deceased and had asked him to work for him failing which he would assault him.

Hence, considering the above facts, the learned Additional Sessions Judge held that only during trial it can be thrashed as to whether the accused had intentionally pushed the deceased or it was a mere accident. He accordingly, by the impugned order rejected the prayer of the petitioner and adjourned the case for framing charge u/s 304 I.P.C.

Learned counsel for the petitioner submitted that the statements of the witnesses including the daughter-in-law of the deceased show that it is a pure case of accident. There was no mens rea on the part of the petitioner. As such, at best the offence u/s 304A I.P.C. is made out against the petitioner and no offence u/s 304 I.P.C. is made out on the basis of the allegation. He further submitted that the post mortem report would show that the doctor had reserved his opinion regarding the cause of death till the receipt of the report of the Forensic Science Laboratory of the Visceras sent and histopathology report of heart but the learned Sessions Judge without considering those reports passed the impugned order. I think in this case the decision of the Apex Court in the case of State of Maharashtra Vs. Salman Salim Khan and Another, is applicable. In a similar situation the Apex Court has held that though it is open to the High Court to quash the charges framed by the trial court but the same cannot be done by weighing the correctness or sufficiency of the evidence. The principle to be adopted by the High Court in several cases should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. It is at the stage of trial that the truthfulness, sufficiency and acceptability of the offence can be judged. On perusal of the impugned order and hearing the submissions of the learned counsel, in view of the above decision, I do not find any reason to interfere with the impugned order. Accordingly, this application is dismissed.